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Everything You Thought Was Hard Is Easy

By Juliet Lapidos October 5, 2012 3:42 pmOctober 5, 2012 3:42 pm

At the American Enterprise Institute on Tuesday, Justice Antonin Scalia delivered what event organizers described as “valuable insights into the interpretive methods by which judges should decide statutory cases and attorneys should argue them.”

Among these insights was that it’s easy to figure out what the Constitution demands, and that any idiot could correctly decide the most controversial cases. Sounding more like The Onion than a conservative intellectual, he said:
“The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.”

From this dismissive statement of questionable truth value (nobody ever thought the Constitution prevented restrictions on abortion?), Justice Scalia turned to mocking so-called Living Constitutionalists, who think the document has a dynamic meaning and that contemporary views should be taken into account when interpreting it. He described an imaginary justice who goes home for dinner and explains to his wife that “the Constitution means exactly what I think it ought to mean.”

Like his imaginary justice, Justice Scalia sometimes fails to set aside his personal beliefs. Consider his dissent in Lawrence v. Texas, which struck down the state sodomy laws he finds so obviously acceptable under the Constitution. He said Americans have every right to enforce “the moral opprobrium that has traditionally attached to homosexual conduct” in order to protect “themselves and their families from a lifestyle that they believe to be immoral and destructive.”

In that dissent, he argued that sodomy laws don’t violate the equal protection clause. He’s also argued that laws discriminating against women don’t violate the equal protection clause. Yet in Bush v. Gore, he signed on to the idea that the Florida recount–you guessed it–violated the equal protection clause.